Nunley v. Pettway Oil Company, 15951.

• Decision Date: 27 May 1965
• Docket Number: No. 15951.,15951.
• Citation: 346 F.2d 95
• Parties: Kenneth Jerry NUNLEY, Plaintiff-Appellant, v. PETTWAY OIL COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

346 F.2d 95 (1965)

Kenneth Jerry NUNLEY, Plaintiff-Appellant, v. PETTWAY OIL COMPANY, Defendant-Appellee.

No. 15951.

United States Court of Appeals Sixth Circuit.

May 27, 1965.

Harry Berke, Chattanooga, Tenn., for appellant, Berke & Berke, Ben E. Caldwell, Chattanooga, Tenn., on the brief.

Thornton Strang, Chattanooga, Tenn., for appellee, Stuart E. Duncan, Chattanooga, Tenn., on the brief, Strang, Fletcher, Carriger & Walker, Chattanooga, Tenn., of counsel.

Before MILLER, PHILLIPS and EDWARDS, Circuit Judges.

EDWARDS, Circuit Judge.

This is a diversity case. Plaintiff was injured by a truck which fell off a grease rack in a gas station. There were two defendants. The first was the operator of the station, one Owens, as to whom a verdict and judgment of $25,000 was entered and not disturbed on motion for judgment non obstante veredicto. The second was the owner of the gas station, defendant-appellee herein, Pettway Oil Company, as to whom the $25,000 verdict also applied. The trial judge, however, granted a motion for judgment n. o. v. as to defendant Pettway because of the jury's answer to a special interrogatory. In answering this question the jury found plaintiff to have been a licensee rather than an invitee at the time of the accident.

On this appeal plaintiff-appellant contends that plaintiff was an invitee as a matter of law. Alternatively he contends that the licensee-invitee question was at least a jury question and that the trial judge actually decided it against him by an instruction to the jury given when the jury was in doubt during its deliberations.

Appellee Pettway contends that plaintiff at the time of the accident was a licensee as a matter of law and that no gross or willful negligence being shown as to defendant Pettway, the judgment n. o. v. should be affirmed. Alternatively defendant Pettway claims that the judge's instruction was proper judicial comment on the evidence and that the jury answer on this question mandated the judgment n. o. v. as to defendant Pettway.

Thus the facts pertaining to the licensee-invitee issue are crucial to our decision.

Plaintiff was a regular truck driver for one Gibson who operated eight trucks off a lot behind defendant's gas station. Gibson purchased his gas and oil from defendant Owens and his employees frequented the gas station to get telephone orders in relation to their work. Sometimes there was work for Gibson's trucks on Saturday and it was the practice for men who wanted to work that day to report to the gas station to see whether any work was available. In addition, it is conceded that from time to time plaintiff was employed as an extra by defendant Owens for Saturday work in the gas station changing oil on cars and trucks.

These facts, however, are not controlling in this case because it is conceded that when plaintiff reported to the gas station on the Saturday in question, he learned "There was nothing to do." Thus, under Tennessee law, plaintiff could not be held to be an invitee as a matter of law simply because he was an employee on premises where he had both a right and a duty to be in the course of his employment. Westborne Coal Company v. Willoughby, 133 Tenn. 257, 180 S.W. 322 (1915). Cf. Ballinger v. I. V. Sutphin Company, Atlanta, Inc., 332 F.2d 436 (C.A.6, 1964).

Even though the employment relationships referred to above did not make plaintiff an invitee as a matter of law, under the circumstances of this case, they are background facts which the jury could consider along with the facts, recited below, upon which plaintiff principally relies in asserting that he was an invitee.

Plaintiff was a customer of the gas station owned by defendant Pettway and leased and operated by defendant Owens. He testified that he bought gas, oil, and repair parts there. He also testified that on the Saturday in question, he decided to fix the starter on his car and intended to purchase the parts found to be needed from defendant Owens. In pursuance of this plan, and obviously with full knowledge of Owens and his employees, plaintiff took his starter into a work area immediately forward of and below the grease rack on which a truck was elevated. He was injured when the truck rolled forward off the grease rack. Plaintiff claimed that this could only have occurred as a result of defendant Pettway's negligent maintenance of the grease rack. And on this issue we review a jury verdict against appellee and favorable to plaintiff.

Recently in another Tennessee diversity case, this court recited the applicable principles of Tennessee law thus:

"Tennessee law is controlling. In Chattanooga Warehouse & Cold Storage Co. v. Anderson, 141 Tenn. 288, 210 S.W. 153, the Supreme Court of Tennessee cited with approval the general rule as stated by the United States Supreme Court in Bennett v. Louisville & N. Railroad Co., 102 U.S. 577, 26 L.Ed. 235, as follows: `When one expressly or by implication invites others to come upon his premises, whether for business or for any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger, and to that end he must exercise ordinary care and prudence to render the premises reasonably safe for the visit.\' It also cited with approval the following definition stated in Shearman & Redfield on Negligence, 6th Edition, Section 706: `Invitation by the owner or occupant is implied by law, where the person going on the premises does so in the interest or for the benefit, real or supposed, of such owner or occupant, or in the matter of mutual interest, or in the usual course of business, or where the person injured is present in the performance of duty, official or otherwise.\' Although in that case the injured person did not qualify as an invitee because he had gone into a part of the premises where he was not permitted to be, the rule as there stated appears to be the applicable Tennessee law. The general rule is also briefly stated as follows in Section 332, Restatement, Torts-Negligence: `A business visitor is a person who is invited or permitted to enter or remain on land in the possession of another for a purpose directly or indirectly connected with business dealings between them.\'" Ballinger v. The I. V. Sutphin Company, Atlanta, Inc., supra, at 437-438.

We think the trial judge was right on the facts we have recited in considering the licensee-invitee question a question of fact for the jury and in...